Railcar Hazmats Storage: Reducing Risks in a Time of Terrorism

Introduction: Chemical industry officials say that since September 11 they are vigorously revising their own risk assessments on dangerous facilities and operations that could provide attractive targets/weapons for terrorists. The railroad industry (the Association of American Railroads) is also doing so, and specifically regarding hazardous materials rail cargoes, although the AAR study will be available to the FBI, not for the public.

One issue for the AAR study is "storage in transit" of hazardous materials railcars. In Homeland Defense terms, one would "harden the target" by increasing site security and making the target less attractive – reducing the hazard. . The AAR task force staffer says we have a "new world" in Right-To-Know since September 11, meaning the pendulum can now swing way over to the secrecy side. There is no thought at AAR of any need for public accountability on risks or risk reduction or site security.

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[Part of the historical context here is that the powerful transportation industry lobby got hazmat transportation exempted from the post-Bhopal federal Right-to-Know laws on emergency planning (1986) and disaster prevention (1990), so we know much less about serious transportation hazards than about those of fixed facilities.]

Federal transportation officials and state chemical safety officials report that chemical companies are massively escaping effective oversight, e.g., under federal EPA or OSHA regulations and/or state and local Right-to-Know and disaster prevention regulations, by making increasingly extensive use of railcars for on-site storage and process feed instead of using their own onsite fixed chemical storage containers. When railcars are hooked up to chemical plant processes for direct use, their "unloading and loading" is considered by some companies to be still part of "transportation", and thus regulated by U.S. DOT regulations (49 CFR) --- which preempt the potentially more stringent requirements (varying by jurisdiction) of local, state and federal regulations on fixed facilities.

Or the railroads can lease some track to the chemical companies and label the resulting railcar storage as "storage in transit". They the companies assert again that such storage is not subject to any regulations but the minimal federal DOT regulations, which historically have focused mainly on container safety. DOT acknowledges privately that they can certainly provide no effective oversight of thousands of loaded chemical tankcars in various storage situations. Chemical company lawyers over many years have vigorously used agency and court proceedings to assert federal preemption and to defeat attempts of local officials to impose safety regulations.

These regulation avoidance schemes occur in hundreds (or thousands) of locations – no one has tried to get an overall count, it seems. In a time of new terrorism consciousness and risk assessment recalculations, state officials warn that the "huge" problem of leased sidings result in railcars much more vulnerable to attack – they cite instances, for example, of "56 LPG cars I can show you that are allegedly in storage", sometimes in downtown railyards.

"CNN Presents" recently (December 2001) aired a one-hour documentary on "What Next?" might we expect in targets from the terrorists. In the segment on industrial chemicals, which CNN considers to be perhaps the most likely next set of targets, the Mayor of Baltimore was quoted as saying that it was very difficult to get private companies to erect security fences, etc. around their loaded railroad tankcars. CNN showed tank cars in Baltimore with graffiti on the side, clearly not kept under effective security. Baltimore City fire prevention officials assert that there are at least eight sites in the city where leased siding storage of railcars occurs, and without any serious security measures.

California law reportedly defines railcar "storage in transportation" [perhaps not the exact terminology] (vs. storage in a fixed location and therefore regulated by state and local chemical accident laws) as being on the same stretch of track no longer than 30 days, and "meter maid"-type officials sometimes actually chalk mark the cars and track in order to keep account of the length of stay. But state officials say that "the shippers only have to move the car one foot" to start the 30-day clock again for transportation-related storage.

An earlier California controversy about railcar storage reportedly occurred during the 1984 Los Angeles Olympics, when local officials went to court to force LPG (propane) shippers to move some 80 loaded railcars further from stadia used by the games. Chlorine tank cars used by public water and sewage plants – not as regulated for many years as private facilities were -- may be the greatest risk overall in many areas.

Aspects of the problem:

The only (sort of ) "routing" rule in federal DOT rail hazmat regulation is "the 48-hour rule": railcars of hazmats must proceed expeditiously, specifically must not be left to sit longer than 48 hours. (There are no federal hazmats transportation routing rules except for high-level nuclear waste by truck.)

But there is a "black hole", a regulatory loophole, into which hazmats railcars can be driven: a chemical company can lease a siding (stretch of track) from a railroad and leave hazmats railcars there indefinitely, even loading and unloading from them. These arrangements are called "leased sidings", or "storage in transit" or "storage incidental to transportation." Chemical companies claim that this situation falls under the regulation of the DOT’s hazmats regulations, in 49 Code of Federal Regulations, thus preempting state and local regulations.

Such storage is usually far below the radar screen of local health and safety regulators, unless some resident strongly objects when he or she sees the same hazmat railcars parked nearby for months. A big controversy occurred many years ago in Framingham MA regarding storage for months of vinyl chloride railcars in the downtown railyard. Local officials imposed several kinds of local security mandates: fences, lights, guards, etc. but the situation was reportedly resolved only when one company went out of business.

There is also an institution called "rolling leases" -- by which chemical companies lease only the stretch of track (say, 60 feet) directly under the car, so the lease moves when the car moves. The railroad can then have maximum flexibility to move the car around at will. State officials say that the only purpose of this neat trick is to take advantage of the regulatory black hole described above.

DOT’s Research and Special Programs Administration, uncomfortable with the safety implications of these low-oversight arrangements, has an ongoing (for years now) rulemaking, HM-223, to "clarify" the coverage of their regs on loading, unloading of chemical cars and "storage in transit." A somewhat simplified interpretation is that DOT wants to give up/clarify that they do not have any regulatory authority over railcars on leased sidings and only joint regulation on loading/unloading, so that state and local officials are no longer preempted and are free to bring railcar storage under Right To Know regulations, etc. This could involve imposing new fees to be paid by railroad and chemical shippers.

Chemical and oil industry officials, unsurprisingly, have for years vigorously argued, in comments to the HM-223 docket, that DOT should retain authority over this storage.

The Federal Rail Administration, a part of DOT, has no current information on the extent, location or risk of such storage. They report they are awaiting action by the rail industry on its terrorism study. Years ago a cursory FRA/Rail Safety Office headquarters survey of its regional offices turned up a total of 608 places where FRA could say such storage was going on. FRA says now that a two-week survey of its regional inspectors (of their files on complaints and inspections) would be necessary to turn up current information on the scope of the issue.

Action items for community groups/researchers:

Contact the following for information on the extent and location of leased siding railcar storage/past releases/risk assessments/previous "flow studies" of hazmats rail transportation through your area:

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